Factors determine upward, downward departures
Judge Greg Galler
Legal Columnist
In the last two columns I discussed how Minnesota has a system of determinate sentences for felony convictions.
Sentences are determined according to guidelines that are presumed to apply in all cases. A judge may not depart from the guidelines unless the case involves “substantial and compelling” aggravating or mitigating factors.
When departing a judge must specify what those factors are and why the departure sentence is more appropriate, reasonable, or equitable than the presumptive sentence.
A departure can be more severe (upward) or less severe (downward) than the presumptive sentence. Minnesota law governs when there may be a departure from the presumed sentence.
Factors that are sometimes relied on for a downward departure include that the person is amenable to probation, the crime was less serious than typical, that the defendant has assumed responsibility for the crime, or expresses genuine remorse.
Factors justifying an upward departure include that the crime was committed with particular cruelty or within the victim’s zone of expected safety (like a home).
While departures can be described as either upward or downward, there are two other classifications of departures: durational and dispositional.
The durational departure is the easiest to understand.
Assume that a man with a criminal history score of 3 has pled guilty to residential burglary. His presumptive sentencing range is from 29 to 39 months.
With a downward durational departure, he would still be sent to prison but a judge could order a term shorter than 29 months.
The duration of his sentence has been modified, downward, from the presumed sentence.
Similarly, an upward durational departure could occur. This would mean that a jury has determined that factors exist justifying a sentence of more than 39 months in prison.
A dispositional departure is also available.
A downward dispositional departure would occur if the presumed sentence calls for a person to be sent to prison but the judge decides not to send the person to prison. The person’s disposition has been changed from serving time in the prison to not serving time in prison.
An upward dispositional departure would occur if the presumed sentence does not call for prison time but a jury has determined that factors exist that justify serving prison time.
In case you didn’t notice, a judge can only determine to impose a downward departure.
A jury must unanimously find the facts to justify an upward departure (unless the defendant agrees to have a judge decide the issue). This is because the state must prove all facts justifying a criminal sentence to a jury.
The jury must be persuaded that there is proof beyond a reasonable doubt as to all factors that affect a person’s sentence.
These last three columns have attempted to explain the legal framework within which sentences are determined. There are also practical considerations that come into play when determining sentences.
In the next column I’ll describe some of the common issues situations that determine plea agreements and sentences.
Judge Greg Galler is chambered in Washington County. If you have a general question about the law or courts for Judge Galler, send your question to the editor of this newspaper. Learn more about Judge Galler, or listen to a podcast of his columns at HYPERLINK “http://www.judgegreggaller.com” www.judgegreggaller.com.
